LAND, THE STATE AND IDENTITY: A TONGAN PERSPECTIVE ∗ JOEL FOTU INTRODUCTION In accordance with legend and Tongan history, the first known King, ‘Aho’eitu, was born around 950 A.D. He was the first Tu’i Tonga , who was regarded as being of divine sanctity and power, for he was originated from Tangaloa in the sky. The Tu’i Tonga lineage has ruled Tonga for most of periods until the 19 th century when the modern ruler of Tonga, George Tupou I, came to power. He decided to merge the Tu’i Tonga with two other royal lineages, Tu’i Ha’atakalaua and Tu’i Kanokupolu , to form the Tu’i Kanokupolu dynasty, as it is better known today. 1 The same King introduced a Constitution for his people. However, the transition from a tribal society to a constitutional government was a difficult period for most Tongans towards the end of the 19 th century. But, at the end of the day, most Tongans today are proud of having a written Constitution for over a century, in comparison with other island states such as Fiji, Samoa, Papua New Guinea and others who only had theirs in recent times. According to Tonga’s most eminent historian, the late Dr Sione Latukefu, Tonga was politically stable leading up to the beginning of the 18 th century.2 Latukefu further observed that this stable political state of affairs was due to the reciprocal relations and balance of interests existing between the various classes of Tongan society. At the top of the social pyramid were the ha’a tu’i (‘kings’). Immediately below this stratum was that of the hou’eiki (chiefs), then the kau mu’a (sons of the union between a chief and a matapule ), the ha’a matapule (chiefs’ attendants), and kau tu’a (commoners) in that descending order. At the bottom of the scale were the kau popula (slaves).3 This system of political control was also applied to control over land which was in essence feudal in every respect. In that context, ‘the protection and jurisdiction offered by the chiefs ensured for the commoners security for both their lives and their property. It created and maintained peace and order, which ultimately resulted in prosperity and contentment’.4 The first contact made by a European with Tonga was in 1643, when Abel Tasman called at Tongatapu. Tasman was very impressed with the industry of the Tongans. In his log book he stated that ‘we saw with these people no weapons, so that all was peace and friendly’.5 He further recorded that the land was cultivated everywhere and there were no villages as each man lived in his own garden, the allotments being separated by reeds. The next contact was made by Captain James Cook during his second voyage to the Pacific in 1773. Like Tasman, Cook observed that the ‘the people went about unarmed and seemed very peaceful’.6 Cook ∗ LLB, MPP(Hons.), Dip.LGA, Dip.Mgnt., NCB; Special Counsel, Glaister Ennor, Barristers, Solicitors & Notary Public, Auckland. 1 S Latukefu, Church and State in Tonga (1974) 4. 2 Ibid 9. 3 Ibid 10. 4 Ibid. 5 A Sharp, The Voyage of Abel Janszoon Tasman (1968) 56. 6 A H Wood, A History and Geography of Tonga (1945) 19. 30 also recorded that Tongatapu was extensively cultivated with ‘the houses being surrounded by perfumed flowers and set in the middle of food-gardens the planting being systemic and in rows. … Good roads, arched over with trees, went in all directions. There were no villages’.7 It would appear that Tonga was peaceful, idyllic and politically stable in the eyes of two well- known navigators and explorers of both the 17 th and 18 th centuries; their respective records corroborated each other’s views of Tongan society that existed at their respective time periods. This paper will be divided into five main parts in an endeavour to examine the following areas: (a) The land and the issues relating to it; (b) The role of the State in keeping law and order and the maintenance of an outdated land tenure system; (c) Keeping an identity by a Tongan in a changing world; (d) A brief study of how a group of Tongan lawyers stopped the late King George Tupou V from selling the royal residence in Epsom, Auckland, known as ‘Atalanga; and, (e) A conclusion. THE LAND ISSUES It is appropriate to summarise in a tabular sketch the territorial basis of native Tongans’ political and customary structure in regards to the land tenure system at the time the Constitution was mooted.8 Geographical Administrative Category of Tenure Basis of Tenure Division Head or Occupant (a) Fonua (t otal land Tu’i (King) Allodium Conquest mass (b) Tofi’a (estates) Hou’eiki (Nobles) Royal grant of Military claims on occupancy King and annual tributes (c) Ngoue’anga Matapule (Chiefs) Chiefly grant of Administrative duties (plantations) occupancy to King and nobles (d) ‘Api (allotment) Tu’a (Commoners) Tenant at will Polopolo (First fruits and other) feudal dues Following the enactment of the Constitution, layers (b) and (c) merged into one, although not all the matapules were granted a tofi’a. The other important change was in layer (d), where the commoners were guaranteed full emancipation from feudal dues and confirmed the permanency of tenure through registration. The importance of land, or ‘api , to a Tongan cannot be overemphasised. Land gives to a Tongan his identity in the society where he is borne to that piece of land. He will grow up and die in the same land, and then the same land will be passed on to his children and so on. The 7 Ibid 18. 8 R R Nayacakalou, ‘Land Tenure and Social Organisation in Tonga’ (1959) 68 Journal of the Polynesian Society 93, 98. 31 eldest son in a family by marriage has an automatic right to inherit the family town allotment (1 rod 24 perches) and a bush allotment (around 5 1/4 acres) once that person attains the age of 16 years. The rest of the brothers from the same family, if any, will have to ask (or tala ) their village noble to allocate them pieces of land for their own use. The Tonga Constitution Act 1875 prohibits the sale of land although an owner may lease his land for a fair rent. There is no restriction on the lessee from sub-leasing the same piece of land. King Tupou I was made aware by Baker and others of the Aboriginal people and the poor living in parks and by the roadside in Sydney, New South Wales. The late King vowed that his people would not suffer the same fate, so when the Constitution was drafted provisions were made to prevent the sale of land; such land could only be inherited by the heir or the eldest son through marriage. This land tenure system is unique among the other Pacific neighbours, such as Fiji and Samoa, where the land is owned by the members of the family in common (eg Mataqali in Fiji, aiga in Samoa and hapu for Maori people in New Zealand). The concept of land tenure refers to a system of land ownership that regulates the relationship of the people with the land and, more particularly, the power to dispose and the right to the use of that land. Customs and traditions have played important roles in the relationship between the natives of these islands to the land of their ancestors. Professor Ron Crocombe has this to say to that extent: Land was highly valued in pre-contact societies, but it had no exchange value in a monetary sense. It was not saleable, and only in some area and to a limited extent was it used to produce goods for trade or exchange. The value of land was the source of almost all subsistence requirements, and as one source of status and prestige. It was also a basis for psychological security, for it gave people an identification, a place to belong. The exercise of land rights was, in a sense, the hallmark of citizenship. 9 In comparison to the greater respect and affection shown by a Maori for to his ancestral land, Raymond Firth illustrates and amplifies the attitudes to his land in the following striking metaphor and proverbs: The lands whereon his forefathers lived, fought, and were buried were ever to him an object of deepest feelings. ‘Noku te whenua, o oku tupuna’ – ‘mine is the land, the land of my ancestors’ was his cry’ … . Proverbs about land shows the fundamental place which it occupied in the Maori scheme of things. ‘Man perishes, but the land remains’ … might be taken as one branch of the native philosophy. A similar proverb is ‘He kura tangata, e kore e rokohanga; he kura whenua, ka rokohanga’, which compares treasure in man with that in land … . ‘People die, are slain, migrate, disappear; not so the land, which forever remains’.10 In 2008, the late King George Tupou V consented to the setting-up of a Royal Land Commission to investigate and to report on possible changes to the present land tenure system. The Final Report has been tabled in Parliament in recent months. Unfortunately, the terms of reference were restricted to issues or matters concerning land law and practices but ‘without changing the basic land tenure of our Kingdom’.11 The nobles will still be the owners of the estates given to them to distribute to the ordinary people. Unless there is another 9 Ron Crocombe, ‘Overview’ in Ron Crocombe (ed), Land Tenure in the Pacific (1971) 4.